Monday, October 31, 2005

The right to privacy. My beliefs about abortion, the context in which the right to privacy is almost always discussed, are relatively well thought-out and solid. They're influenced largely but I like to think not entirely by the experiences of some people close to me, so I can definitely see both sides of that issue. But on the right to privacy itself rather than that one application of it, I really can't see both sides. Either you believe that such a thing exists (or at least, should exist), or you haven't thought the issue through, or your beliefs are much too authoritarian to accomodate democracy. It's not an absolute right, of course, almost nothing is in the real world. But a lot of rights we take for granted flow from it partially if not entirely, and if the option of solitude and being left alone is the exception rather than the rule, then pretty much all other personal rights are empty platitudes. And complaints about penumbrae in the Constitution aside, the Ninth and Tenth Amendments say that anything not explicitly given to the government is reserved for the people - can't get too much clearer than that.

So I can see why people are worried about this Alito guy being nominated to the Supreme Court after Mier's "withdrew" her nomination. Anti-worker (a more accurate term then the common "pro-business"), well, pretty much inevitable from a Bush nominee. Reactionary and maybe even Dominionist, the same. But anti-privacy? This Alito guy didn't oppose abortion in an opinion he wrote, but at the same time supported a requirement of spousal notification. At best that's dishonest ("logically inconsistent," to be legalistic), and completely incompatible with any principle of a right to privacy. And later, supporting strip searches without a warrant? Jesus.

But it's not like I'm surprised. The reactionary and anti-worker tendencies of this administration show themselves in a hundred little and not-so-little ways, but there are often exceptions. Lots of the minorities and women in the Bush administration hold some liberal and/or progressive positions, even if never in a way that actually influences policy. But the one thing that as far as I can tell is completely and totally consistent is an expansion of executive power.

First of all, I don't know if the Supreme Court has ever ruled substantially on the War on Drugs. If they haven't, then some drugs now illegal really should fall under a right to privacy, I think. Not coke and heroin, I hope, the really hard drugs can be dangerous or at least burdensome even to people who aren't taking them. As I said, no rights are absolute in the real world.

And I'm not an expert, despite the fact that I sometimes sound like I think I am... but some people who are agnostic or at least silent on abortion, believe that Roe was wrongly decided and/or wrongly reasoned. So some people, though I imagine very few for purely partisan reasons, might say that the Supremes were right but for the wrong reasons. (For that matter, I should really read the text of Roe some day - I wonder how many pontificators actually have.)

But to answer your question, I'd say it falls under the Ninth and Tenth Amendments. The Constitution was intended to be a limitation on the rights and powers of the [federal] government, and everything not explicitly given to it by the Consitution and English common law were reserved for [the states and] the people. (I use the brackets because a lot of factors, beginning with the 14th Amendment, moved a lot of the states' power up to the feds or down to the people. I happen to think that's good overall, but that's a seperate long discussion.) So according to the Ninth and 10th, the question should not be "do women have the right to an abortion?" but "does government have a right to deny abortions?"

Ultimately, though, what it comes down to is whether you choose to believe that a fetus is a life in every relevant sense of the word, or that the government should mandate erring on the side of life. That's why I can see both sides. If a fetus is a person, then abortion is murder and no one is crazy enough to suggest that privacy trumps involvement in murder. But if it's not, then abortion is, among lesser problems, government meddling of the most personal and intrusive kind imaginable.

In fact, I read something a few days ago myself... the government of this country has never mandated an organ donation. Even ones with really minimal impact to the donor and immediate life-saving impact to the recipient, like bone marrow or blood. And on the other side of the spectrum, forced castration is only used in the most extreme circumstances and is highly controversial even then, and forms of it have been rejected as cruel and unusual. The pattern is that in those cases, an individual's body is the line beyond which government cannot cross without permission. So why do we stay out in those cases... but can and should meddle in abortion?

The problem with saying that illegal drugs fall under a right to privacy is that there are still some people will want to restrict, and justifying that is either complex or impossible. At some point I will have to find out why cigarettes and alcohol can be (restrictedly) legal while others can't. I'm pretty sure the answer is either money or politics.

I definitely like rephrasing "right to life" vs. "right to choice" as "right of the government to deny access to abortions". It makes the entire debate much more clean and remotely solvable, whereas the current phrasing is impossible to solve. No one is ever going to prove whether a fetus is alive at a given point in time, because those who believe it is alive from the beginning believe in souls, which are beyond scientific purview.

Consider the middle ground. Think of a fetus as a non-human life. A pet, if you're in a good mood. This would no doubt raise objections from both camps, but it's the only compromise I can work out with people who think a ball of cells is "human life" or "potential life" and should be granted human rights.

Right or wrong by whatever debate, we treat animal life very differently than human life. If the animal is furry and affectionate, its life is to be valued; otherwise, it's life is to be ignored until it affects us. We allow euthanization (or just squashing) those animals we don't want around or can't find homes for, we allow hunting and fumigation.

Grant a fetus a kind of life, which is then granted moderate respect, but not the "rights" we grant humans. In this view, abortion comes across as distasteful, requiring justification and regulation, but neither immoral or illegal - unless you're an animal rights activist. And at this point, abortion becomes along the lines of surgery, organ donation etc. which state that the government should stay out of people's bodies.

Long; I just came up with this explanation as I was reading your post. More or less my own view on abortion, which states that it may (currently) be a right but let's not be cavalier about it, either.